Sheriff Appeal Court allows neighbours’ appeal against servitude interference interdict

A dispute concerning alleged interference with their servitude right of access led the respondents to obtain an interdict against the appellants. The appellants challenged that decision, as well as the sheriff’s refusal to declare a note on their title sheet referencing acquisitive prescription a manifest inaccuracy.

The appeal was heard by Temporary Sheriff Principal Mohan, Appeal Sheriff Fleming and Appeal Sheriff Kerr, with Alan Innes appearing for the appellants and Gavin MacColl KC for the respondents.

Extended servitude and vehicular access

The parties owned neighbouring plots of land in Nairn. The respondents’ plot, Balfreish Farm, was previously part of the title containing the appellants’ Balfreish House, the two having been separated in a 1977 split-off disposition. That disposition created a servitude right of access in favour of the Farm over a track leading from the public road, through the appellants’ plot, up to the Farm.

In 2002, both plots’ then-owners entered into a minute of agreement extending the width of the servitude and recording its use by various motor vehicles. After acquiring the farm in 2022, the respondents applied successfully to the Keeper to have the extended servitude right entered on their title sheet, having supplied affidavits attesting that the track had been used by the plot’s owners in such manner for the 20-year prescriptive period. By consequence, the respondents’ amended title sheet stated that the “servitude right of access was created by prescription and added to this title by application registered 23 June 2022”.

A dispute concerning the use of the track arose, leading the respondents to obtain an interdict at Inverness Sheriff Court preventing the appellants from “interfering with … [their] servitude rights of pedestrian and vehicular access”. A counterclaim by the appellants, seeking declarators that entries recording the servitude on both plots’ title sheets contained manifest inaccuracies, was rejected.

On appeal, the appellants argued that the sheriff erred in both aspects of his decision. The sheriff had no evidential basis for apprehending that the appellants would, in the future, interfere with the respondents’ right of access and was accordingly wrong to grant perpetual interdict against them. Moreover, the entries in the parties’ title sheets stating that the servitude right of access was created by prescription were “wrong in law”.

Not clear why interdict was granted

Appeal Sheriff Kerr began her decision by noting that: “Interdict is a forward looking, preventative remedy. It orders the cessation of a wrong which is ongoing, and/or orders that a wrong which is reasonably apprehended should not occur. Past wrongful acts can, of course, inform a court’s assessment of what may happen in the future. It follows that when a sheriff grants a crave for interdict they may make findings in fact detailing past wrongs.”

She continued: “The question we are being asked to address in this case is whether the sheriff was wrong to grant perpetual interdict in the absence of any indication in his findings of what actions could reasonably be anticipated in the future … [U]se of the word ‘had’ in the finding in fact and law demonstrates beyond doubt that the sheriff had in mind only completed wrongs when deciding the facts of the case and their legal consequence. Interdict is not a remedy against a completed wrong. It follows that, looking at the findings in fact and finding in fact and law, it is not clear why interdict was granted.”

Concluding that the appellants’ appeal against the sheriff’s decision to award interdict should be granted, she added: “The evidential basis for the decision of a fact finder should, with some very limited leeway, be found in their findings in fact. In this case, on the basis of evidence he preferred and found established, the sheriff was able to decide that, in the past, on a few limited occasions, the appellants had interfered with the respondents’ servitude right of access. That did not justify the granting of an interdict … We agree with the appellants’ proposition that, in the context of this judgment, the absence of a finding about ongoing wrongs and/or anticipated wrongs is fatal.”

Turning to the issue of whether the entry of a prescriptive servitude in the parties’ title sheets constituted a manifest inaccuracy, Appeal Sheriff Kerr noted: “Our concluded view is that there is an obvious tension between the sheriff’s finding that section 3(1)(b) of the [Prescription and Limitation (Scotland) Act 1973] applied to the circumstances and finding in law that there was no manifest inaccuracy in an entry in the respective titles stating that the servitude right of access was created by prescription alone … The current entries in the relevant property title deeds are clearly inaccurate, referring as they do to the constitution or creation of the servitude by prescription alone, rather than by a deed thereafter fortified by prescription as outlined in the uncontested findings of fact.

She concluded: “We are not persuaded to refrain from interfering with such an obvious inaccuracy, which is wrong both in law and in fact, regarding creation of the servitude because the respondents perceive it will cause them some difficulty in exercising the servitude which exists by virtue of the 1977 Disposition and was acknowledged and expanded by a minute of agreement in 2002. The inaccuracy is perfectly clear, and, in our view, not reasonably disputable.”

The appeals regarding the interdict and counterclaim were both accordingly allowed.